Quick Take

Evaluating the TikTok Law from an International Human Rights Perspective

April 29, 2024

The long-awaited TikTok bill just became law in the United States. As domestic court challenges loom, and U.S.-based legal scholars debate the law’s constitutionality, it may also be worth considering: How does the legislation fare under international human rights law?

Article 19 of the International Covenant on Civil and Political Rights (ICCPR) – a treaty that is binding on the U.S. and is a bedrock of international human rights law – stipulates that any restrictions on freedom of expression must be legal, necessary and proportionate to achieve a legitimate state aim. This is known as the Article 19 three-part test (a misnomer since the test actually consists of four principles: legality, legitimacy, necessity, and proportionality).

Applying this test on the new law raises four main questions:

Is the law sufficiently specific as to what the regulated parties can or cannot do, and does it provide sufficient precision in terms of enforcement? The law’s provisions related to “foreign adversary controlled applications” do seem specific enough with regard to the obligations of app distributors. However, the law gives the U.S. president wide discretion in determining what is a foreign adversary-controlled application, which could undermine its legality.
Does the law serve a legitimate state aim? The law’s proponents justified its passage by arguing that TikTok poses serious national security threats – specifically, they allege, the social media app places Americans’ sensitive personal data at risk and exposes them to algorithmic manipulation by the Chinese Communist Party. While these are certainly legitimate aims if taken at face value, the government has so far produced little evidence publicly to support those allegations.
Is the law necessary to achieve those legitimate state aims, or are there alternative, less restrictive ways to achieve those aims? Opponents of the law have argued, credibly, that a forced sale of TikTok (and apps in a similar position) is neither necessary nor sufficient to achieve the stated aims. Protection of consumers’ data would be better achieved by a comprehensive federal data protection law. The Chinese Communist Party and any other foreign adversary can already purchase heaps of sensitive personal data from data brokers whose business is currently legal.
Is the law’s requirement of a sale or ban proportional to the legitimate aims? Opponents of the law argue that it is not proportional to the national security threats at hand because the right of users to express themselves via the app—and the right of the app to curate its algorithms as it desires—outweigh the threat of algorithmic manipulation. The argument resting on the right of users to free speech is less persuasive, in my opinion, because users can use a variety of other social media apps to channel their expression.